The Last 50 Years of MDL: A Brief Literature Review of New Articles

With the opioid proceedings so frequently popping up in the news, there is renewed and new attention being paid to multidistrict litigation by both the general public and scholars in the field.

There are tons of great articles out there, but I'd like to highlight Nora Engstrom's important work on Lone Pine orders, as well as my response to her. Later in this post, you'll see some fabulous articles that the University of Georgia Law Review published in a symposium collection.

First, Professor Engstrom's paper, The Lessons of Lone Pine, highlights the concerns that she sees with rising use of Lone Pine orders, orders, in other words, that require plaintiffs to provide expert reports testifying to specific causation. I cannot commend it highly enough.

I wrote a response to her piece, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, largely to focus her work on trends that I was noticing within federal product liability MDLs. In doing so, I provide a short summary of my recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, as well as some data on the life cycle of mass torts. For those interested in the data, you can click on the timeline of MDL events below for an interactive and downloadable version:

Second, last spring the University of Georgia Law Review held a symposium on multidistrict litigation. There is a wonderful collection of essays and articles that may pique scholars' and practitioners' interest. Here's a run down, with links to the articles (all free):

Judge Clay D. Land, who presided over the Mentor ObTape MDL, wrote an article entitled Multidistrict Litigation after 50 Years: A Minority Perspective from the Trenches.

Margaret S. Williams, a senior researcher at the Federal Judicial Center and my sometimes co-author wrote an eye-opening article for those of interested in empirics and stats on MDL titled The Effect of Multidistrict Litigation on the Federal Judiciary over the Past 50 Years.

Howard M. Erichson, a professor at Fordham Law School, authored a piece titled MDL and the Allure of Sidestepping Litigation, which turns a critical eye on the beginnings of the Opiate MDL before Judge Dan Polster.

Myriam Gilles, a professor at Cardozo Law School, and Gary Friedman, who practices in the field, wrote an article on the use of issue classes in mass torts, titled Rediscovering the Issue Class in Mass Tort MDLs. (I confess to being a longtime fan of issue classes, so if you really want to get into the weeds here, you can read my work here.)

Adam S. Zimmerman, a professor at Loyola Law School, authored an article titled Surges and Delays in Mass Adjudication, which compares how federal courts and agencies have handled and experimented with mass adjudication.

Andrew D. Bradt, a professor at Berkeley Law School, wrote an article entitled Multidistrict Litigation and Adversarial Legalism, which relates Robert Kagan's famous book, Adversarial Legalism, to MDL.

Alexandra D. Lahav, a professor at the University of Connecticut School of Law, authored an article about the many forms of collectivization, from class actions to bankruptcy, entitled The Continuum of Aggregation. Her work reminds us that while we often think about MDL discretely, it is, in fact, one of many forms of aggregation that share common threads and challenges.

Happy reading, all!